What is the DMFSA syntax for commercial terms?
Model Fund Sales Agreement
Here is the DMFSA model fund sales agreement in English, French and German:
http://dmfsa.info/blog/wp-content/uploads/2011/06/DMFSA-model-agreement-2011-Release-01-FR.doc
http://dmfsa.info/blog/wp-content/uploads/2011/06/DMFSA-model-agreement-2011-Release-01-EN.doc
http://dmfsa.info/blog/wp-content/uploads/2011/06/DMFSA-model-agreement-2011-Release-01-DE.doc
The DMFSA model fund sales agreement was prepared by the internal lawyers of several European asset management firms including Alliance Bernstein, AXA Investment Managers, Axeltis, BlackRock, CM-CIC Titres, Dexia Asset Management, DWS, Fidelity, Franklin Templeton, HSBC Trinkhaus, Inversis, JPMorgan Asset Management, Schroders, Société Générale Asset Management (now Amundi) and UBS . The present draft has been released with the aim of sharing the text and encouraging further development towards a commonly accepted standard. The development is not complete and the contributing companies have not collectively made a commitment to use it. However, the text is being used by Schroders, with modifications where necessary, and others are considering using it.
The model agreement was initially drafted to support simple distribution by private placement and/or public offer between a fund promoter and its distributor. That helped the working group to keep the text quite short, like the Swiss Fund Association’s legal model. This approach was taken to increase the prospect of success in the first stage of work even if further work would be necessary to achieve a model agreement that could be used to support many types of business. It might even be necessary to develop specific models or extensions for certain types of business. The present model agreement therefore does not support:
(1) Distribution by a fund platform (in which the platform operator does not assume the responsibilities of distributor with respect to AML under applicable laws);
(2) Structured product investments, where special restrictions might apply to investments in the funds or fund of funds;
(3) Business in which one of the parties acts as “introducer” only;
(4) Investments via life insurers (life link agreements);
(5) Distribution in the United States of America or to US Persons.
Like any model agreement (think of ISDA or GMSLA), the DMFSA model is intended to help companies write business more easily and it should be used appropriately. We therefore consider that companies:
(1) May use it where they consider it to be appropriate and practical, taking into consideration the type of distribution and the willingness of each party to the agreement to use the model;
(2) Need not use it where they consider it to be inappropriate or unpractical;
(3) May amend it directly or by using the “amendments”facility in the DMFSA appointment document (a model for a term sheet that enables companies to make DMFSA agreements quickly and flexibly).
(4) May always elect to use more substantial proprietary terms in their sole discretion and without providing their reasons.
You can find the model appointment document in English, French and German here:
http://dmfsa.info/blog/wp-content/uploads/2011/06/DMFSA-appointment-document-draft-08h-FR.docx
http://dmfsa.info/blog/wp-content/uploads/2011/06/DMFSA-appointment-document-draft-08h-EN.docx
http://dmfsa.info/blog/wp-content/uploads/2011/06/DMFSA-appointment-document-draft-08h-DE.docx
2011: Syntax Definitions, Updates
Synopsis
The syntax will be kept under maintenance in 2011 and we expect to release updates to fix bugs or to make minor adjustments in the light of feedback from pilot implementation.
Deliverables
Updated versions of the syntax in draft form and in formal releases.
Time
Drafts will be issued as soon as possible. Formal releases will be issued when they have been agreed by the syntax design team.
Comments
In the summer of 2010 we started work on the the 2010 Release 02 of the syntax but for lack of time the work stopped after the publication of the first draft in August:
That work has now been incorporated into the 2011 Release 01, Draft 01, to which the following changes have also been added:
(1) In Part 3, a typographic error in the rule ApplicableNAV has been corrected. The term ReferCalculationFrequency had been modified on 10 August 2010 to become ReferCalculationLookupFrequency but we overlooked to amend this rule.
(2) In Part 5, a typographic error has been corrected in the typology and user guide of the rule OfferRights, which had been created on 23 April 2010. The typology of the term DelegationPermitted has been defined (it is a literal) and its meaning has been described more clearly.
The new draft of the DMFSA syntax and semantic definitions is here:
Further minor changes will be proposed in the coming months, which may include:
(A) An increase in the size of the text field ProductSetAlias to from Max35Text to Max2000Text to meet the needs of firms who would like the alias to be more descriptive.
(B) A modification – possibly an extension – to the rule HoldingAddress to indicate to a commission calculation agent that the address should be used only as a contractual reference, and that the holdings should be measured using another address (for example, when a Clearstream address will be used for dealing but another address – such as an agent number in a client holding database – will be used to measure holdings when commissions are calculated).
Intro to T4: Reporting (Statements and Reconciliations)
The DMFSA specification that was developed in the earlier stages of the project does not describe how parties to an agreement should exchange information on the business that they have done together. This work package will examine how they should exchange information about holdings, commissions due, and payments, and how they might reconcile their business together using straight-through processing techniques.
Deliverables
Abstract (implementation independent) definitions of protocols for reporting and reconciling commissions and their underlying holdings and transactions.
Time
Not likely to start until late autumn 2010. Completion date not set.
Comments
What follows is simply a discussion of how we might do this. It is not a formal design but it does use many DMFSA defined terms and concepts and it provides a good insight into what the DMFSA reporting and reconciliation service might look like.
Unlike the agreement term sheet editor (see work package T2 – advanced prototype), where it is important to provide companies with a printed “half-way house” to encourage the use of DMFSA in the agreement creation process, this work package will remain within the STP domain, producing a design to enable reporting via XML messages. We do not intend to provide instructions on how to interpret those designs to create paper or PDF or spreadsheet reports.
We will start by defining the top level structure of a report. In this example we have included only rebate and reconciliation data. In a full design we would expect the report to contain transaction charge data such as front-end and back-end loads, switch charges, etc. You can see that the report is very simple:
The rebate reports
A DMFSA agreement permits parties to set up many different rebate mandates (known as rebate sets) and the rebate report allows the results of those mandates to be reported separately:
Each rebate set report is uniquely linked to the relevant rebate set in the sales agreement by its local identifier. The report also includes summary earnings totals and a list of detailed rebate reports:
Earnings totals are reported in relevant rebate earning currency (as opposed to settlement currency, which is a matter for the settlement instruction, not the rebate report). The earnings total may be a single currency or several currencies if the agreement describes rebates for multi-currency investments:
The reconciliation data
Reconciliation cannot be performed without knowing (1) the currency conversion rates that were used by the party that calculated the commissions (questions of best execution must be resolved outside of DMFSA) when it aggregated multi-currency holdings in order to look up the relevant rebate rate in the reference currency of the rate table and (2) the detailed holdings data that were employed in the commission formula and (3) how products are related for aggregation purposes and (4) their price history during the rebate period.
The reconciliation data must include all currency cross rates and all holdings and products that were used to generate the rebate payments. (There is possibly a problem with this design because it will not detect an omission. If a product has not been used in a calculation when it should have been, it will not be delivered to the other party for reconciliation. We might overcome this by extending VerifyDMFSA to deliver a complete product directory or an alias. See “further ideas”, below.)
That sounds complex but in reality it is simple:
CrossRates = MasterCurrency, ForeignCurrencyRates, {ForeignCurrencyRates};
HoldingReport = HoldingAddressType, HoldingAddressNumber, Holding, {Holding};
Holding = ISIN, HoldingHistory;
The top level product report is constructed in a similar way to the holding report, being a list of detailed product reports, which show the price history of each product that was used to calculate the rebates. In this case, each product’s name and the product families to which it belongs (i.e., share class, sub-fund, fund families and any other family aliases, such as an asset class or style category, all of which are necessary to test whether the product aggregation rules have been correctly applied):
ProductReport = ISIN, [Name], Share, SubFund, Fund, {Alias}, PriceHistory;
Further ideas
The discussion above is intended to suggest how the DMFSA design might develop. It is not a complete design. It does not, for example consider whether the report should include DMFSA concepts such as “Discount”, “CompanyShare” and “CounterpartyShare” – the implication is that the report shows only “CounterpartyShare”. Nor does it consider whether the report should confirm the payment mandate that will be used for settlement, either by reference to its LocalID in the sales agreement or perhaps more conveniently by repeating it in the report. Note that when we say payment mandate we mean the co-ordinates of the payment rather than the settlement amount, which might involve the transmission of information about foreign exchange, value date, etc., which will probably not be known when the earning and reconciliation report is generated.
Some of the ideas in the discussion obviously require expansion. For example, the rule ProductReport (immediately above) provides the ability to name one or more aliases, which might have been included in the aggregation instructions for a rebate mandate. An alias is a set of ISINs, the members of which can be implied by searching for every product in the reconciliation data set that bears the name of the alias. This might be sufficient for our purposes but we won’t know until we have worked the design through in detail. An alternative approach might be to provide an alias history in the form of a baseline membership and a set of updates during the report period. This alternative approach has the advantage that it might also be used as a directory update operation within the VerifyDMFSA function (see work package T3 – lifecycle management). The function might have the following definition:
Baseline = Date, Member, {Member};
Member = ISIN, [Name], {Alias};
Update = Date, Amendment, {Amendment};
Amendment = Assertion | Retraction;
Assertion = ISIN, [Name];
Retraction = ISIN, [Name];
Intro to T3: Lifecycle management
In order to be of practical use, particularly when implemented in a computer system, the DMFSA concept needs a protocol for contracting, modifying and terminating agreements.
Deliverables
Abstract (implementation independent) definitions of protocols for contracting, modifying and terminating agreements.
Time
Not defined because the scope and difficulty of the work is not yet well understood, albeit we aim to release a first draft protocol in 2010.
Comments
The design of lifecycle protocols requires a working knowledge of the construction of communication protocols and data structures, which is more commonly found within the industry’s infrastructure and technology companies. In principle, it is simple to design protocols. In practice, designing effective protocols to manage distributed data takes a degree of skill.
The DMFSA syntax was designed to make it easy to address a specific part of an agreement so that it could be used as a reference in communication between parties (e.g., in a payment instruction) and so that an agreement could be partially terminated or amended by reference to a specific part. It is therefore very easy to address an entire RebateSet simply by using its LocalID. However, not every part of the agreement has an identifier. XML manipulation techniques nevertheless make it possible to address them precisely and therefore to delete them or modify them. Some parts of an agreement (e.g., Markets and Products) will almost certainly be common to agreements between the Company and several unrelated Counterparties – think of them as the Company’s standing data. Modifying the meaning of data with broad or global scope implies that every agreement that refers to them must also be modified. This work package must therefore examine the definition of the rule Agreement to see what modifications, if any, are necessary to support the partial modification of agreements and how to treat data whose scope runs beyond that of a single agreement.
This work package will look to the technical disciplines associated with distributed databases and directories for insights into how to address these issues.
Syntax workstream 2010
I am pleased to report the following developments in the DMFSA project:
(1) The technical standard has been improved in several important respects including:
(a) Agreements can now be made between more than two parties.
(b) Counterparties (i.e., distributors, platforms, etc.) Read more »
2010: Syntax Definitions, Updates
Synopsis
With the concept now starting to progress in the commercial sphere (SIX SIS has mandated DMFSA as a standard for its new fund platform; Schroders has started a pilot scheme on its Luxembourg funds; other companies are expressing a commercial interest in the concept) we propose the following developments for the first technical release of the DMFSA Syntax Definitions in 2010:
(1) Enable the syntax to describe multiple parties to an agreement.
(2) Enable Counterparties to list their affiliates.
(3) Improvements to the rule EligiblePositions.
(4) Add the ability to describe the term of the agreement and the termination notice.
(5) Remove the application of the rule TerminationMode to FrontEndLoads.
(6) Convert the rule FrontEndLoads into a rule that is capable of managing other transaction charges such as back-end loads and conversions.
We will continue to develop the Syntax Definitions throughout the year, with the objective of fixing errors and adding features.
Deliverables
First 2010 release of DMFSA Syntax Definitions, developed from the baseline document “DMFSA Specific Commercial Terms, Draft 07″
Further releases only as required.
Time
First release before end April 2010.
Further releases on a more deliberate time scale, perhaps quarterly or six-monthly, to allow proper consideration and development of the DMFSA standard.
Comments
Initially based on the same working group that developed the 2009 release of “DMFSA Specific Commercial Terms, Draft 07″, we welcome contributions from all interested parties and we will establish a core design group and larger consulting group for this activity. You are also welcome to post comments here.
DMFSA in the news
We hope that the DMFSA project will feature in industry newspapers from time to time, and we would be very grateful for any help that you can give us to make people aware of the project. In this thread we will post copies of articles as they are published. We start with the first article, which was printed in the January edition of the Luxembourg Fund Review:
http://dmfsa.info/blog/wp-content/uploads/2011/05/Lux_Fund_Review.pdf
You can find out more about the LFR here: www.ifebenelux.com/UK/luxembourg-fund-review.asp
Questions and answers
Here are some questions that we were asked when we presented the DMFSA concept to several companies and industry associations in December 2008 and January 2009.
We’ll post more Q&A here as the consultation progresses. You’re also very welcome to ask a question directly, and we’ll answer it as soon as we can.
Thanks,
Noel
Is it possible to adopt the legal and the technical frameworks separately?
Yes. It is possible to adopt the model fund sales agreement without adopting the technical framework for describing commercial terms, and it is possible to use the technical framework with your company’s own sales agreement. However, companies will benefit more if they adopt the legal and technical frameworks together.
How can I adopt the legal framework only?
Use the legal framework (the DMFSA model fund sales agreement) as the basis for your own fund sales agreement and add to it a customised schedule that describes your commercial terms.
How can I adopt the technical framework only?
Prepare an agreement using your own legal terms and attach to it a schedule that describes your commercial terms, which conforms to the definitions in the technical framework.
It will be years before this concept comes into common use throughout the industry. How can I benefit sooner?
If you adopt the legal framework (the model fund sales agreement) you will quickly be able to reduce the legal cost of preparing agreements.
It will take some time to define and introduce message protocols that can be exchanged over networks such as SWIFT. How much time is likely to be determined by how quickly SWIFT’s members can agree upon what the message protocols should be and how quickly they implement them within their computer systems.
Leaving electronic messages aside, an easy and inexpensive way to adopt the technical framework is to use a “term sheet editor”: simple software that is configured with your fund standing data, which can be used to create a document that describes your commercial terms. The document can be printed and attached to your sales agreement or it can be exchanged with your business partners via e-mail.
The only term sheet editor that exists today is a prototype that was developed during the first phase of the project. It is not capable of being put into production but at least one company is developing a commercial version with the aim of having it in beta test before summer 2009. Most industry participants’ internal IT departments could also create one easily.
What can I do if I don’t like some part of the model fund sales agreement?
The model agreement was drafted to meet the needs of most companies that are buying or selling mutual funds, so that they could use it with little or no need for modification. If for any reason the parties to an agreement wish to extend the model agreement or replace some part of it with their own special terms, they can do so by means of a side letter, in which they describe what changes they wish to make. In this way the parties to the agreement can still benefit from the model agreement without any loss in flexibility.
In the event that the parties wish to use an entirely proprietary legal agreement, they can still use the DMFSA technical framework to describe their commercial terms.
Some of the models in the technical framework don’t reflect my business model. Is that a problem?
A large number of business models are supported by the technical framework, and you will almost certainly find that your current business model is one of them. The technical framework is very flexible: it allows you to choose between options, to exclude terms that are not relevant to you, and to combine terms into a unique description of your business that can be as simple or as sophisticated as you want it to be.
The preliminary consultation process has identified some practices that are not yet supported by the technical framework. In the next phase of the project we will extend the framework to support these practices.
Intro to T2: Advanced prototype
Synopsis
A primitive prototype was developed in the first phase of the project, which showed how the Specific Commercial Terms might be used to build a simple database and term sheet editor (a “term sheet” being a printed document that contains all of the commercial terms necessary to contract a fund sales agreement).
Deliverables
One or more “beta” release versions of DMFSA-compliant software.
Time
First beta versions made available to the industry before Friday 28 August (in time for the autumn return to work).
Comments
The beta software should comply with all aspects of the DMFSA technical standards and permit companies (whether sell-side or buy-side) to describe the commercial terms of a sales agreement, to store them in a simple database, and to print them to paper in a form in which they can be signed and attached as an exhibit to a master agreement (which might be the DMFSA standard terms or any proprietary agreement).
Whilst any promoter or distributor may create its own software, the most likely publishers of beta software under this work stream will be financial sector technology companies, who will be pursuing their own commercial interests, and who hope to build a client base in an emerging sector of the fund services market. The pursuit of commercial interest in this sense is entirely compatible with the aims of the DMFSA project, and should be encouraged. Indeed, the sooner that industry participants can employ beta software within pilot projects, the better.
An important – vital – factor for the successful development of software and services in this market is that the software developers respect the DMFSA technical standards in order to ensure the interoperability of systems and the accurate, effective exchange of information upon which the downstream benefits (e.g., “contrast” markers, reconciliation, reporting and payment) of this project will depend in the long term.
Provided that the technical standards are respected, there is considerable potential for differences between the software and services that might be developed by different companies. Some companies might only offer very simple term sheet editors. Others might offer more sophisticated commercial databases and sales modelling tools. Others might choose to create portals in which several parties can meet to contract bilateral sales agreements and to exchange information about the business that they subsequently write together. In this respect the DMFSA concept aims to follow the example of other industries, such as the Web industry, in which producers are free to use one of many designs of Web server and service, and consumers are free to choose one of many designs of Web browser, with a high degree of confidence that they will be compatible but often very different.
It’s important to note that the DMFSA project has no power to insist that software and services be DMFSA-compliant and no capability to grant accreditation to any such product (although the project intends to license its intellectual property on terms that permit companies to claim DMFSA compatibility for their products).